U.S. v. Lopez

• Decision Date: 29 April 1985
• Docket Number: No. 84-3254,84-3254
• Citation: 758 F.2d 1517
• Parties: 18 Fed. R. Evid. Serv. 90 UNITED STATES of America, Plaintiff-Appellee, v. Jesus Martin LOPEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1517

758 F.2d 1517

18 Fed. R. Evid. Serv. 90

UNITED STATES of America, Plaintiff-Appellee, v. Jesus Martin LOPEZ, Defendant-Appellant.

No. 84-3254.

United States Court of Appeals Eleventh Circuit.

April 29, 1985.

H. Jay Stevens, Federal Public Defender, Orlando, Fla., for defendant-appellant.

Paul J. Moriarty, Asst. U.S. Atty., Orlando, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before FAY and JOHNSON, Circuit Judges, and DYER, Senior Circuit Judge.

DYER, Senior Circuit Judge:

Jesus Martin Lopez appeals his conviction for conspiracy to distribute and to possess with intent to distribute cocaine hydrochloride, for possession of cocaine hydrochloride with intent to distribute, and for distribution of cocaine. He asserts that the district court erred in finding sufficient independent evidence of Lopez' involvement with the conspiracy to support the admission into evidence of co-conspirators' statements under United States v. James, 590 F.2d 575 (5th Cir.1979) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). In addition, Lopez claims error in the admission of fingerprint evidence, the denial of defendant's motion for acquittal, and the failure to instruct the jury at the close of the case on defendant's right not to testify and on the meaning of "knowing" and "willful". We disagree and affirm.

Lopez and three co-defendants were arrested as the result of an undercover drug investigation conducted by the Drug Enforcement Administration (DEA) involving the use of a confidential informant, "Mr. Dardo". During the course of the investigation, Mr. Dardo engaged in several recorded telephone conversations and meetings with co-defendants Jairo and Sylvia Restreppo in which Jairo Restreppo's brother-in-law, defendant Martin-Lopez, was implicated as the source of cocaine obtained during undercover purchases. In these conversations Jairo and Sylvia Restreppo do not specifically refer to defendant Lopez but instead mention "my brother-in-law" or "Martin". In addition, DEA Agent Behan testified to co-defendant Jairo Restreppo's comment at a meeting at which Behan, another DEA agent, and Mr. Dardo received a cocaine sample from Jairo Restreppo. In reference to the ultimate bulk delivery, Restreppo said "he was getting it from Miami, that his brother-in-law would go down and pick it up and drive it to wherever the delivery point happened to be." Lopez contends that these statements were improperly admitted under the co-conspirator exception to the hearsay rule, Fed.R.Evid. 801(d)(2)(E).

Mr. Dardo also testified to a transcript of a telephone conversation between Mr. Dardo, Jairo Restreppo and an individual who identified himself as "Martin, man, his brother-in-law" and who stated "we need to speak to you urgently." Mr. Dardo failed to make an in-court identification of defendant Martin Lopez as the "Mr. Lopez" with whom he met or as the voice in the phone conversation. Lopez argues that in the absence of an in-court identification connecting the telephone voice, the "Mr. Lopez" present at the meeting and the defendant Martin Lopez, these statements are also co-conspirator statements improperly admitted under James.

In addition to testimony concerning telephone conversations and meetings with the defendants, the government introduced testimony comparing Lopez' fingerprints with fingerprints found on a plastic "Canon" shopping bag containing cocaine. DEA Agent Collins testified that he received the cocaine at Jairo Restreppo's sister's house. Mr. Dardo identified in court Jairo Restreppo's sister as Blanca Lopez, defendant Lopez' wife. Mr. Dardo stated that Blanca Lopez took a plastic "Canon" bag containing a kilo-and-a-half of cocaine from a kitchen closet, placed the plastic bag in a paper bag and put onions on top of the bag. The Government introduced the plastic bag containing cocaine into evidence at trial. The court permitted a latent fingerprint examiner to testify to her conclusion that latent fingerprints and palm prints detected on the bag were the same as the fingerprints appearing on a fingerprint card bearing the name of "Martin-Lopez". Defendant Lopez objected to the Government's offer of the fingerprint card on the ground that the Government failed to establish the origin of the fingerprint card and to connect the fingerprints on the card with the defendant. The expert had not taken defendant's fingerprints herself and could only associate the prints with the name printed on the card. Government counsel advised the court that the prints on the card had been taken pursuant to court order by an F.B.I. agent in the building and offered to have the defendant fingerprinted in court if necessary. The court determined that the "document speaks for itself" and permitted introduction of the card and the expert's testimony.

The Government also presented testimony placing Lopez at a meeting for payment between DEA agents, Dardo, Restreppo and Martin-Lopez. The meeting was arranged by Sylvia Restreppo and Dardo. Dardo testified that she stated in a telephone conversation that she would notify her brother-in-law and asked Mr. Dardo to bring the payment for the cocaine. Undercover Agent Behan identified defendant Martin-Lopez as the man accompanying Jairo Restreppo at the payment meeting and testified that Lopez identified himself to Behan at the meeting. DEA Agent Collins testified that Jairo Restreppo identified Martin-Lopez to Collins as Restreppo's brother-in-law. Restreppo and Martin-Lopez were arrested at the payment meeting.

At trial, at the close of the Government's case, defendant requested a James determination that the evidence independent of the co-conspirator statements was insufficient to establish the existence of a conspiracy or that defendant participated in the conspiracy. For the purpose of the appeal Lopez admits the existence of the conspiracy and confines his arguments to the lack of evidence establishing his involvement with the conspiracy. The court found that there was ample independent prima facie evidence. Defendant then moved for judgment of acquittal on the ground that there was insufficient evidence to sustain a jury verdict. The court denied the motion. Defendant Lopez did not testify. At the close of all the evidence the court again denied Lopez' motion for judgment of acquittal and the granting of the James motion.

Lopez argued that under James the Government had the burden of establishing the conspiracy and Lopez' participation by a preponderance of the evidence. He argued that the evidence, independent of the co-conspirator statements and the fingerprints, amounted to mere presence at a meeting arranged for payment. The court determined that there was a preponderance of independent evidence to connect Lopez to the conspiracy and thus found the co-conspirator statements admissible and denied the motion for acquittal.

The Government argues that the co-conspirator statements are admissible under the co-conspirator exception to the hearsay rule, Fed.R.Evid. 801(d)(2)(E). In James the former Fifth Circuit interpreted Rule 801 to require that

on appropriate motion at the conclusion of all the evidence the court must determine as a factual matter whether the prosecution has shown by a preponderance of the evidence independent of the statement itself (1) that a conspiracy existed, (2) that the co-conspirator and the defendant against whom the statement is offered were members of the conspiracy, and (3) that the statement was made in furtherance of the conspiracy.

590 F.2d at 582 (emphasis added).

The trial court specifically concluded that the evidence met the preponderance of evidence test. The trial court's findings under James, as a factual matter, includes both a quantitative and qualitative evaluation of the evidence which will not be overturned unless clearly erroneous. United States v. Perry, 624 F.2d 29, 30 (5th Cir.1980), accord United States v. Bulman, 667 F.2d 1374, 1379 (11th Cir.1982) cert. denied 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982). We find that the evidence, independent of the co-conspirator statements, is sufficient to support the trial court's James determination.

First, there are statements made in a telephone conversation with Dardo by Martin, "man, his brother-in-law" indicating a need to speak with Dardo. Shortly after that conversation, Dardo met with Restreppo and "Mr. Lopez". Mr. Lopez handed Dardo the cocaine, discussed profit and demanded $2,000 for the cost of transporting the cocaine. Although Mr. Dardo failed to make an in-court identification of defendant Lopez connecting the telephone voice, the man at the meeting and defendant, Agent Behan later made an in-court identification. Behan testified that defendant was introduced by Restreppo as his brother-in-law Martin. In addition, Agent Collins identified defendant in court as the man accompanying Restreppo to the payment meeting. The later testimony of Collins and Behan provide sufficient circumstantial evidence that the voice in the telephone conversation was that of defendant. "Courtroom identification is not necessary when the evidence is sufficient to permit the inference that the defendant on trial is the person who made the statements in question. United States v. Fern, 696 F.2d 1269, 1276 (11th Cir.1983) (citing Delegal v. United States, 329 F.2d 494 (5th Cir.1964), cert. denied, 379 U.S. 821, 85 S.Ct. 44, 13 L.Ed.2d 32 (1964).

There is sufficient circumstantial evidence to attribute the statements to defendant. "A defendant's own statements are admissible against him as party admissions under Fed.R.Evid. 801(d)(2)(A)." United States v. Zielie, 734 F.2d 1447, 1457 (11th Cir.1984) (citi...